Citation Nr: 9829238
Decision Date: 09/30/98 Archive Date: 10/06/98
DOCKET NO. 96-46 072 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran had active military service between 1955 and
1957.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia.
The veteran appeared at a hearing held at the RO in April
1998, before the undersigned, a Member of the Board who was
authorized to conduct that hearing. A transcript of that
hearing has been associated with the claims folder.
REMAND
The VA has a duty to assist veterans in the development of
all facts pertinent to their claims. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1998). The duty to assist
also includes obtaining medical records where indicated by
the facts and circumstances of the case. See Murphy v.
Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1
Vet.App. 90 (1990).
The service medical records reflect that in 1957 the veteran
was referred to a U.S. Navy hospital following a temper
tantrum that was assessed as an acute anxiety reaction. He
was hospitalized for one month. It was reported that he had
been forced to drop out of the Naval Cadet Training Program
in 1956 because of increasingly frequent anxiety spells
whenever he was faced with situations which evoke the show of
hostility. It was subsequently concluded that he had shown a
lifelong pattern of hostility and passive obstructionistic
behavior, best described a passive aggressive personality;
and that his condition existed prior to service entrance.
The veteran was discharged from service due to the
personality disorder that was said to have existed before
service.
Post service medical records reveal that over the years since
his military service the veteran’s condition has been
variously diagnosed as severe anxiety; agoraphobia and
claustrophobia; mixed bipolar disorder; major depression with
melancholia; obsessive-compulsive personality disorder;
cyclothymic personality disorder and manic depression.
During his personal hearing in 1998 the veteran testified
that since service various private psychiatrists have treated
him, and that while he was working for Pfizer during the
1960’s, he was afforded a medical examination. These records
may be pertinent to the claim and should be obtained prior to
a decision on appeal.
The veteran further testified at his personal hearing that he
has been receiving Social Security Administration (SSA)
disability benefits for his psychiatric disorder since 1986.
The RO apparently did not attempt to obtain copies of the
medical records relied on by SSA in rendering its decision
granting disability benefits. It has been resolved in
various cases, essentially, that although the SSA decisions
are not controlling for VA purposes, they are pertinent to
the adjudication of a claim for VA benefits, and that the VA
has a duty to assist the veteran in gathering SSA records.
Collier v. Derwinski, 1 Vet.App. 413 (1991); Murincsak v.
Derwinski, 2 Vet.App. 363 (1992); Masors v. Derwinski, 2
Vet.App. 181 (1992); and Brown v. Derwinski, 2 Vet.App. 444
(1992).
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to his claim, the case is
REMANDED to the RO for the following development:
1. The RO should request from the
veteran a list with the names of all the
private doctors and health care
facilities where he has been treated for
his psychiatric symptoms since his
discharge from service. He should also
be asked to provide the name and address
of all his employers after service and to
complete the necessary authorizations for
release of information to the VA. The RO
should obtain all medical records from
all the sources reported by the veteran.
The Board is particularly interested in
all the records of any treatment afforded
to the veteran by Dr. Davis, Dr. Sergeant
and Dr. Hothwanger which are not already
on file, and also all health records kept
by his employers after service reflecting
examinations and treatment of the
veteran. The RO should also make sure
that the records of all VA treatment
afforded to the veteran are obtained. If
private treatment is reported and those
records are not obtained, the veteran and
his representative should be provided
with information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1998). All the records obtained should
be made part of the claims folder.
2. The RO should contact the SSA to
obtain official documentation of any
pertinent application for benefits filed
by the veteran including any SSA
Administrative Law Judge Decision, as
well as copies of the medical records
upon which any decision was based. The
RO should respectfully invite the
attention of the SSA to 38 U.S.C.A. §
5106 (West 1991). All of these records
are to be associated with the claims
folder.
3. Once the above-requested records have
been obtained and associated with the
claims folder, the RO should scheduled
the veteran for a VA psychiatric
examination in order to determine the
nature and etiology of his current
psychiatric disorder. The psychiatrist
should be provided with the veteran’s
claims folder and should review the
veteran’s medical history, particularly
the available service medical records,
prior to conducting the examination. The
examiner should specifically discuss and
reconcile all the prior diagnoses. The
examiner must review all the medical data
on file and should specifically address
the following questions: (1) the
approximate date of onset of any
identified psychiatric disorder; (2) if
any form of psychosis is now present, the
examiner should indicate whether any
symptoms reported by the veteran in
service or within one year after service
represented the early manifestations of
the disease; (3) the degree of
probability that any existing personality
disorder was aggravated by the veteran’s
military service; and (4) whether other
factors during the veteran’s military
service may have played a role in the
development of, or aggravation of, any
psychiatric disorder found to be present.
If the veteran is not currently suffering
from an acquired psychiatric disorder,
the examiner must indicate so. The
examination report should set forth in a
clear, comprehensive, and legible manner
all pertinent findings and should include
complete rationale for the opinions
expressed. In particular, all terms used
in assessing the veteran’s disability
should be free of ambiguity.
4. The RO should review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the report fails
to include adequate responses to the
specific opinions requested, the report
must be returned to the examiner for
corrective action. 38 C.F.R. § 4.2
(1998); See also Stegall v. West, 11
Vet.App. 268 (1998).
5. While this case is in remand status,
the veteran may submit additional
evidence and argument on the appealed
issue. Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992); Booth v. Brown, 8 Vet.
App. 109 (1995) and Falzone v. Brown,
8 Vet.App. 398 (1995). The veteran is
further advised that he has the
responsibility of assisting the RO in the
development of his claim, and that
failure to cooperate may result in an
adverse decision. Wood v. Derwinski, 1
Vet.App. 191, 193 (1991).
6. Following completion of these
actions, the RO should review and
evaluate the claim in light of all the
evidence of record, with consideration of
the benefit of the doubt rule.
38 U.S.C.A. § 5107(b). If the evidence is
not in equipoise the RO should explain
why. See Cartwright v. Derwinski,
2 Vet.App. 24, 26 (1991).
If the decision remains unfavorable as to the issue on
appeal, the veteran and his representative should be provided
with a supplemental statement of the case and afforded a
reasonable period of time in which to respond. Thereafter,
and in accordance with the current appellate procedures, the
case should be returned to the Board for completion of
appellate review. The purpose of this REMAND is to obtain
additional relevant information. No inference should be
drawn from it regarding the final disposition of the
veteran’s claim.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
- 2 -